The Judicial Notwithstanding Clause: Suspended Declarations of Invalidity B R I A N B I R D * ABSTRACT This article considers suspended declarations of invalidity – court orders in Canada that, like use of the notwithstanding clause by legislatures, temporarily give life to unconstitutional laws. Suspended declarations exceed the judicial review powers of Canadian courts, but the unwritten constitutional principle of the rule of law authorizes them where an immediate declaration of invalidity would create lawlessness. The prospect of this scenario yielded the first suspended declaration in Canada, which I consider a legitimate use of the remedy. Since then, however, the legal basis for this remedy has become obscured and, as a consequence, use of the remedy has at times been unprincipled. Suspended declarations can threaten the rule of law if they are misunderstood. In 2015, a court in Quebec upheld legislation in that province allowing physician-assisted death during the period in which the federal crime of assisted suicide remained valid due to a suspended declaration. Where a valid federal law and a valid provincial law conflict, the federal law prevails. Allowing the Quebec law to operate alongside the valid federal law during that period violated the rule of law. Regarding separation of powers, the Canadian Constitution expressly permits legislatures to give life to certain unconstitutional laws via the notwithstanding clause. Courts engage in this kind of activity when they issue suspended declarations. The federal government could have used the notwithstanding clause for physician-assisted death to extend the period of suspended invalidity. There was no need to ask the Supreme Court for the * Brian Bird is the 2019-2020 John and Daria Barry Postdoctoral Research Fellow in the James Madison Program in American Ideals and Institutions at Princeton University. 24 MANITOBA LAW JOURNAL | VOLUME 42 | ISSUE 1 extension. In light of the notwithstanding clause, the separation of powers, and the absence of a grave threat to the rule of law, no court should have issued a suspended declaration in that litigation. Keywords: Canadian Constitution; judicial review; rule of law; separation of powers; notwithstanding clause; suspended declarations of invalidity; Canadian Charter of Rights and Freedoms. I. INTRODUCTION his article considers court orders in Canada that temporarily prolong the life of laws that courts have found unconstitutional. These orders T are known as suspended declarations of invalidity: a court suspends (or delays) the effect of its declaration of constitutional invalidity to a later date rather than give the declaration immediate effect. Suspended declarations resemble the power of Canadian legislatures to temporarily give life to legislation that limits certain guarantees in the Canadian Charter of Rights and Freedoms.1 This power resides in section 33 of the Charter – the so-called “notwithstanding clause.” While scholars such as Sarah Burningham and Emmett Macfarlane have noted the similarities between the notwithstanding clause and suspended declarations,2 the notwithstanding clause is far better known and far more controversial both inside and outside of legal academic circles. Yet if the controversy stems at least in part from a discomfort with giving life to unconstitutional laws, the judicial version of the notwithstanding clause – which, despite notable differences, achieves the same result and can be used in all constitutional litigation, not only in relation to certain Charter rights – should also attract attention. As Grant Hoole writes, suspended declarations are now the “remedial instrument of choice [for the Supreme Court of Canada] in most cases 1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 2 See e.g. Sarah Burningham, “A Comment on the Court’s Decision to Suspend the Declaration of Invalidity in Carter v. Canada” (2015) 78 Sask L Rev 201-207; Emmett Macfarlane, “Dialogue, Remedies, and Positive Rights: Carter v. Canada as a Microcosm for Past and Future Issues Under the Charter of Rights and Freedoms” (2017) 49:1 Ottawa L Rev 107 at 116-120. The Judicial Notwithstanding Clause 25 involving the invalidation of unconstitutional laws.”3 The purpose of these declarations is to allow legislatures to cure the constitutional defects in laws in an environment that is free from abrupt (and at times seismic) legal changes that can follow an immediate declaration of constitutional invalidity. In this article, I investigate the legal basis for suspended declarations through three lenses of Canadian constitutionalism: judicial review, the rule of law, and the separation of powers. I conclude that, as our constitutional law currently stands, suspended declarations are illegitimate apart from the scenario where a judicial declaration that a law is immediately unconstitutional poses a grave threat to the rule of law, in the form of lawlessness. I do not close the door on the possibility of suspended declarations where an immediate declaration of invalidity would imperil other unwritten constitutional principles such as democracy, respect for minorities, and federalism – but that issue is best left for future scholarship. Even if suspended declarations are available in relation to those unwritten constitutional principles, it seems fair to say that the instances in which it is legitimate to issue such a declaration are few and far between. Suspended declarations of invalidity exceed the judicial review powers of Canadian courts. The Canadian Constitution does not expressly contemplate these declarations. The constitutional provision that is said to govern judicial review for constitutionality today – s. 52(1) of the Constitution Act, 1982 – only contemplates immediate declarations of invalidity. In fact, there is no reference in that provision to declarations of any sort. Despite this textual state of affairs, I accept, based on its nature and status, that the unwritten constitutional principle of the rule of law authorizes suspended declarations where an immediate declaration would unleash lawlessness. This scenario served as the justification for a suspended declaration when this court order made its debut in Canada in 1985. While the rule of law permits a suspended declaration when an immediate declaration would create legal chaos, suspended declarations can also threaten the rule of law if they are misunderstood. When assisted death was on the horizon in Canada, a court in Quebec upheld legislation in that province which allowed assisted death during the period in which the federal crime of assisted suicide remained valid due to a suspended declaration issued by the Supreme Court. In Canada, where a valid federal law and a valid provincial law conflict, the federal law prevails. The Quebec 3 Grant R Hoole, “Proportionality as a Remedial Principle: A Framework for Suspended Declarations of Invalidity” (2011) 49:1 Alta L Rev 107 at 110-111. 26 MANITOBA LAW JOURNAL | VOLUME 42 | ISSUE 1 court erred by concluding that the federal law was invalid during the period of suspended invalidity. Allowing the Quebec law to operate alongside the valid federal law during that period violated the rule of law. With respect to separation of powers, the Canadian Constitution expressly permits legislatures – and legislatures alone – to give life to laws that violate certain Charter rights and freedoms through invocation of the notwithstanding clause.4 Suspended declarations are, in many respects, a judicial form of this power. In the assisted death litigation, the federal government asked the Supreme Court to extend the period of suspended invalidity. The government could have invoked the notwithstanding clause to obtain this extension, as the clause applied to the Charter right that was at issue.5 There was, in other words, no need to involve the judiciary. In light of the notwithstanding clause, the separation of powers, and the absence of a grave threat to the rule of law, I submit that no court should have issued a suspended declaration in the course of that litigation. Canada’s experience with suspended declarations is worthwhile to consider when fashioning remedies in bills of rights. As the Canadian experience reveals, courts may fashion this remedy if the drafters do not expressly rule it out. Even if a bill of rights expressly allows suspended declarations, there remains the potential for courts to develop an approach to this remedy that lacks coherence with respect to when it should – and should not – be used. Before turning to the relationship in Canada between suspended declarations and judicial review, the rule of law, and the separation of powers, I will briefly survey the legal history of suspended declarations in Canada. II. HISTORY OF SUSPENDED DECLARATIONS IN CANADA For more than 100 years after Confederation in 1867, suspended declarations of invalidity were unknown to the judicial function in Canada. Where a law was found to violate the Constitution, it was immediately invalidated. Before the advent of the Charter in 1982, judicial review of laws 4 Charter, supra note 1, s 33. 5 Carter v Canada (AG), 2016 SCC 4. During oral argument before the Supreme Court, Justice Russell Brown made this point to the parties. The Judicial Notwithstanding Clause 27 for constitutionality almost exclusively concerned the division of legislative jurisdiction between the federal and provincial governments. The suspended